Corporate

New Jersey restaurant and club owners who do not possess a coveted New Jersey liquor license can now advertise that they allow customers to bring their own beer or wine or as it is more commonly known, “Bring Your Own Booze” (BYOB).

BYOB is a concept as inherent in New Jersey culture as Bon Jovi. Tommy’s and Gina’s date night involves a cozy pizzeria where the veal special is outstanding, but the pizzeria does not serve liquor. Yearning for a little wine with dinner, they swing by the liquor store a few blocks away and pick up a bottle of red wine on the way to their romantic meal. While this scene is common place in the restaurants of New Jersey, a sign or other advertisement publicizing “BYOB” is not to be found. New Jersey’s archaic liquor license laws have always banned restaurant owners from publicizing the ability for customers to BYOB, but on November 20, 2018, a New Jersey Federal Judge struck down the prohibition ruling that the ban was unconstitutional because it places a content-based restriction on commercial speech.

In order for a restriction on speech to be viewed as constitutional, it must pass strict scrutiny, the most stringent standard of judicial review used by the Federal Courts. Here, the court found that the content-based restriction on speech failed the strict scrutiny test because it was not supported by a compelling government interest nor was it the least restrictive means of achieving the government’s stated purpose.

Commercial speech such as BYOB advertisement is no exception to the high standard of review and such content based restrictions are presumptively unconstitutional. The ruling is just in time for the start of 2019. It doesn’t make a difference if Tommy and Gina make it or not, but they can now be better informed of their BYOB options.

Not too long ago, technology was considered a “vertical” market filled with companies that met the needs of the “technology” industry (think Microsoft, Dell, Cisco, Intel, and IBM). However, technological products and services have evolved to the point of serving a “horizontal” market, having become an important aspect of many different types of businesses across a wide variety of industries and sectors (think fintech, healthtech, cleantech, autotech, edtech, etc.) and, by extension, M&A transactions.

For example, deals in the media industry increasingly are focused on the digital media aspects, particularly given the decline in demand for print media. Likewise, parties to acquisitions in the financial services industry often pay close attention to the protection of proprietary investment strategies, data protection, trade names, and customized software. Even manufacturers and other traditionally “non-tech” companies are leaning on technology more and more in order to streamline their business processes, manage and analyze data better, and to protect themselves from cyber-attacks.

This trend towards a “horizontal” market only looks to accelerate as technology becomes more and more embedded in businesses of all stripes, as presaged by the $13.7 billion purchase of Whole Foods by Amazon.com Inc. this year. Similarly, private equity interest in tech and tech-enabled businesses has grown in recent years, particularly for more “stable” businesses such as software companies that generate recurring revenue or that serve other businesses.

Given the growing proportion of M&A deals that are considered to be “tech” deals (even where non-technology companies are involved), middle market businesses of all kinds that are evaluating the possibility of a sale or, conversely, looking for potential targets to acquire cannot afford to overlook the importance of technology as a key asset.

High-level legal concerns often revolve around the target’s ownership or right to use key technological assets, as well as the level of protection and ability to transfer the same. This includes making sure that all owned intellectual property of the business is properly registered with the USPTO or copyright office in the name of the appropriate entity, and that all renewals and maintenance fees have been paid. Additionally, acquirers should check that employees and, particularly, key independent contractors of the target have assigned their rights in and to all key intellectual properties to the target. Inbound licenses that are material to the business, as well as revenue generating outbound licenses, should be reviewed to determine assignability. It goes without saying that it is critical to ascertain whether the target has any existing or suspected infringement claims, as well as any security interests or encumbrances affecting its key technology assets.

Further, to the extent key technologies are held within a joint venture between the target and a third party, an acquirer should consider whether its business model would allow it to “step into the shoes” of the target vis a vis the joint venture versus the extent to which the acquirer could readily extract the technological assets and/or wind-down the joint venture.

The takeaway here is when engaging in M&A transactions – whether in the middle market or otherwise – ignore technology at your peril. Those companies (even “non-tech” ones) that can demonstrate a strong command of their technological assets should increase their attractiveness as targets as we move into the future. Conversely, acquirers that understand their own technology “gaps,” can quickly assess the target’s key technological assets and grasp how such assets will improve the integrated business post-closing will be better positioned to focus their due diligence efforts, minimize indemnification risks, and ultimately achieve the intended synergies.

Each year state, local and federal agencies award billions of dollars in contracts to private businesses and of those contracts awarded, government agencies set aside a percentage of business opportunities or contacts for certified Women Business Enterprises (WBE). These government set-asides are for businesses certified as a WBE and sometimes require additional certification as a small business, as such term is defined under federal or state applicable laws to be a Women Owned Small Business (WOSB) and/or industry specific requirements. In addition to government work, many large private sector companies seek to have business relationships with women owned businesses. If a business meets certain requirements, the business could certify as a WBE and reap the benefits of lucrative private sector contract initiatives. For this reason alone, certification solely as a WBE could greatly benefit your business.

A business can be WBE certified by a state government, the Federal Government, a third party certifier such as the Women’s Business Enterprise National Council, or, on the federal and often private sector level, by self-certification. While the WBE certification process may vary slightly depending on the applicable government agency or private company, the requirements are generally similar. At least 51% of the business must be owned and controlled by women and the day-to-day operations managed by women. For certain government contract set-asides, including the Federal Government, an entity must operate in approved industries and not exceed certain size and/or revenue limitations with respect to such industry to qualify as a small business under applicable law.

Certifiers take this process seriously and require, among other things, various organizational, governance and tax documents to vet the applicant. Certifiers are particularly concerned with the “control” requirement and endeavor to look beyond the applicant’s ownership into the realities of decision-making and management. Careful attention is required when there is ownership through other entities or estate planning trusts. Furthermore, certifiers typically prefer applicants to be in existence and conducting business for at least a year prior to submitting an application for WBE status. New York, for example, strongly recommends, but does not require, that businesses operate for at least one year prior to applying for WBE certification. As such, an entity may apply for WBE status prior to operating for one year, but may face issues in collecting the necessary documentation.

While the application process can be scrutinizing in some respects, the benefits of being certified as a WBE can be well worth the process. As a WBE, businesses are afforded improved access to government and private sector work and set-asides. While WBE status does not guarantee more work by virtue of the status itself, WBE status places businesses in favorable positions as they bid for contracts or business relationships with those seeking to work with WBEs. For a business looking to grow, becoming a WBE could be the key to greater revenues and connecting with new industry contacts.

There are similar certifications available for minority-owned businesses.

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Our corporate blog provides news and commentary for entrepreneurs with start-up and early-stage companies to middle market private and public companies.